ORDER :

1. Heard learned Senior Advocate Mr. Percy Kavina with learned advocate Mr. Aditya Pandya for the petitioners and learned advocate Mr. N. R. Parikh for the respondent No. 1 – Bank.

2. Having regard to the controversy involved in this petition and with the consent of the learned advocates of the parties and at the insistence of learned advocate Mr. N. R. Parikh for the respondent No. 1 – Bank to pass the order, the matter is taken up for hearing today.

3. Rule returnable forthwith. Learned advocate Mr. N. R. Parikh waives service of notice of rule on behalf of respondent No. 1 – Bank. Though served no one appears on behalf of respondent No. 2.

4. The brief facts of the case are as under:-

4.1 The petitioner – partnership firm availed the financial assistance from the respondent No. 1 – Bank consisting of overdraft limit of Rs. 280 lakhs, FITL of Rs. 64.16 lakhs, term loan of Rs. 108.60 lakhs and term loan (subsidy) of Rs. 82.92 lakhs in the year 2009.

4.2 The petitioner firm could not repay the outstanding dues of the respondent – Bank in the year 2009 and further in 2017. Therefore, the respondent – Bank issued a notice under section 13(2) of the Securitisation and Reconstruction of Financial Assests and Enforcement of Security Interest Act, 2002 (for short the ‘SARFAESI Act’) on 06.05.2019 calling upon the petitioners to pay Rs. 5,37,31,845.34/-. The petitioners thereafter submitted detailed reply-cum-objections on 0107.2019 which was rejected by the respondent – Bank on 19.09.2019. Thereafter, the respondent – Bank issued the possession notice under section 13(4) of the SARFAESI Act on 11.10.2019 and also filed an application under section 14 of the SARFAESI Act for obtaining the assistance of the authority before the District Magistrate, Banaskantha at Palanpur on 21.11.2019 along with 9 pointer affidavit in support of such application. The District Magistrate, Banaskantha at Palanpur passed the order dated 21.01.2020 under section 14 of the SARFAESI Act. The petitioner filed Securitisation Application No. 102 of 2020 before the Debt Recovery Tribunal – I, Ahmedabad (for short the DRT) on 12.03.2020. The respondent – Bank thereafter filed reply on 25.01.2021 in the Securitisation Application No. 102 of 2020 contending that all the necessary formalities are adhered to by the respondent – Bank while taking action under the SARFAESI Act.

4.3 The DRT by the impugned order dated 28.01.2021 dismissed the Securitisation Application filed by the petitioners. The respondent – Bank on the same day i.e. on 28.01.2021, had taken the physical possession of the subject property without following the due process of law. The petitioners being aggrieved by the impugned order dated 28.01.2021 has preferred this petition.

5. Learned Senior Advocate Mr. Percy Kavina for the petitioners submitted that the Presiding Officer of the DRT has dismissed the Securitisation Application No. 102 of 2020 mainly on the ground of delay without permitting the petitioners to raise all the contentions from the stage of issuance of notice under section 13(2) of the SARFAESI Act.

5.1 It was further submitted that the DRT has also not considered the merits of the matter with regard to the issue of the notice under section 13(2) of the SARFAESI Act which is contrary to the provisions as the respondent – Bank has not bifurcated the principal amount and interest in the said notice and therefore, such notice is not legal and tenable in the eye of law.

5.2 It is also submitted that the issue with regard to defective notice is squarely covered in favour of the petitioners in the case of Punjab National Bank Vs. M/s Mithilanchal Industries Pvt. Ltd. reported in 2020 SCC Online Guj 3441. It was submitted that in view of the decision of the Division Bench in the aforesaid case, the action / recourse under sub-section (4) of Section 13 of the SARFAESI Act is consequential upon the notice under Section 13(2) of the SARFAESI Act. Therefore, the provisions of Section 1